Anna Seyenzia Itanyukhu Indeche v Tom Makokha Musambai [2021] KEELC 4708 (KLR)
The bottom line
#A Kenyan court struck out both a 16-year-old land claim and an eviction order, ruling you cannot relitigate a case that was already decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act
The suit is res judicata and must be struck out
The same land was claimed by way of adverse possession in Bungoma High Court Civil Case No 91 of 1996 between the same parties or their privies, founded on the same 1968 sale agreement. That suit was heard and finally decided by a competent court and no appeal was preferred. The current plaintiff is a privy of, and was substituted by, the same litigant, so Explanation 6 to Section 7 applies. The suit was an attempt to revive the dismissed claim.
Whether the defendant's Counter-Claim could stand
The Counter-Claim was struck out as it too ought to have been raised in the former suit and rests on unproved pleadings
The only support for the Counter-Claim is the replying affidavit, whose averments are not evidence. Further, under Explanation 4 to Section 7, the eviction claim was a matter which might and ought to have been raised in the earlier litigation, per Henderson v Henderson.
Whether the plaintiff could claim adverse possession over land parcel Ndivisi/Ndivisi/217
Even on the evidence the claim would fail because the parcel no longer exists having been subdivided
A claim in adverse possession is directed at the registered proprietor of the land in dispute. Parcel 217 had been subdivided into parcels 2588, 2589 and 2590, and the Originating Summons was never amended. A court cannot grant orders in respect of land that does not exist.
Status of the eviction order dated 1st August 2002
The order was declared null and void and expunged from the record
Although the former Judgment dismissed the adverse possession claim, it contained no eviction order. An order extracted and purportedly signed by the Deputy Registrar on 1st August 2002 could not have been extracted from that Judgment, and leaving it on the record would pervert the process of justice.
Legal principles established
#- Pleadings are not evidence; a decision cannot be founded on unproved averments
- The Court may raise the doctrine of res judicata on its own motion at any time
- The doctrine of res judicata extends to parties and their privies, and a claimant cannot evade it by claiming to sue in a different capacity
- Any matter which might and ought to have been made a ground of defence or attack in a former suit is deemed directly and substantially in issue in that suit
Court orders
#- 1.The plaintiff's suit is struck out
- 2.The defendant's Counter-Claim is struck out
- 3.The eviction order dated 1st August 2002 is declared to be null and void and expunged from the record
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over a claim for adverse possession; suit by Originating Summons
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anna Seyenzia Itanyukhu Indeche v Tom Makokha Musambai [2021] KEELC 4708 (KLR)", Case Analysis (2021). Bungoma High Court Civil Case (Originating Summons) dated 28th September 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4708/eng@2021-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.